Robert S. Bernstein, Moderator
Panelists:
Douglas Cherry, Shumaker, Loop & Kendrick, LLP
Karl Schieneman, Review Less
Robert Bernstein
Douglas Cherry
Karl Schieneman
Lean member Doug is a Partner in the intellectual property practice
group in the Sarasota, Florida office of Shumaker, Loop & Kendrick,
LLP. He is Board Certified in Intellectual Property Law. His practice
primarily focuses on intellectual property and technology law,
including consulting clients and attorneys in eDiscovery issues.
He is chair of the Florida Bar BLS Civil Rules Subcommittee on
Electronic Discovery and was involved in drafting the recently
implemented "eDiscovery Amendments" to the Florida Rules of Civil
Procedure. He is past chair of the Computer & Technology Law
Committee of The Florida Bar. Mr. Cherry has authored many articles
on IP and legal technology, including the article, "Success in
Electronic Discovery," featured in Trial Magazine. Cherry has
conducted seminars on related topics. He is a graduate of the UF
College of Law.
Karl is the President and Owner of Review Less is a Pittsburgh based
electronic discovery consultancy that focuses on predictive coding. He
assists companies with implementing predictive coding in a defensible
manner and works with law firms in litigation with drafting predictive coding
protocols and creating workflows. He is also a Special Master in the W.D. of
Pennsylvania Special Master Pilot Program for Electronic Discovery. He has
trained dozens of judges on advanced analytic review tools.
He practiced law at Pittsburgh based Marcus & Shapira. He received an MBA
from Carnegie Mellon University and graduated on Law Review and Cum
Laude from the University of Pittsburgh School of Law. Some of his past
honors include receiving an Ernst & Young Entrepreneur of the Year Award in
2004, a Vestige Award for Most Innovative Use of ESI in 2008 and has been
involved with Inc. 5000 Award Winning Companies in 7 years with three
different companies
LEAN member Bob Bernstein, Managing Partner at BernsteinBurkley, P.C., has volunteered to moderate the webinar
discussion.
Bob is a qualified member of the panel of the e-discovery special
masters for the Federal Court in the Western District of
Pennsylvania and has been involved in and managed the review of
a production of more than 8 million pages of documents, as well
as having managed the autopsies of a number of bankrupt
companies as plan administrator or commercial counsel.
While fulfilling his duties as managing partner of BernsteinBurkley, P.C., Bernstein represents other businesses of all sizes
and types in many areas of their operation, including
representation in reorganization proceedings. He has extensive
experience in credit recovery matters, including collection,
secured transaction and mortgage foreclosure.
Looking Behind the Curtain:
Offensive and Defensive e-Discovery
Issues in Leasing/Lender Litigation
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Today, most corporate information is created,
edited, accessed, communicated, stored, and
deleted electronically
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More information in electronic medium than
paper
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Electronic data often never takes physical form
(never printed)
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The Human Brain &
Filing System = Metadata
◦ Information about the ESI.
 Application MetaData: Prior drafts and comments.
Stuff in the background. Undo changes. Can
embarrass you.
 System MetaData: File names, size, creation date,
modification, usage.
◦ Rare: Can be evidence. Date logged into system.
Maybe changing data which could be “modified by”
metadata. Rare.
◦ More frequently: Can allow some intelligent
guessing on what types of ESI to include in a case.
 Can make high end analytical search tools work better
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Its changing and you have to be prepared to
keep up with it.
What we do today with technology in life is
different. This impacts E-Discovery. E.g.
Facebook, Twitter, LinkedIn.
E-Discovery Tools also change. Predictive
Coding, Cloud Storage.
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What kind of evidence exists?
◦ Emails, documents, databases, server logs,
web-browsing history, text messages, cell
phone records, etc.
Where is it?
◦ PCs (office and home), laptops, servers, the
cloud, PDAs, cell phones, off-site storage,
back-up tapes, chat rooms, CD-ROMs, zip
disks, etc.
Easy to search/manage
◦ If you know where all of it is.
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Difficult to delete
◦ Redundant information.
◦ Allocated space vs. unallocated space.
◦ Generally not deleted until overwritten.
Nature of Electronic Evidence
◦ Emails.
◦ Social Media.
◦ Corporate website.
◦ Chance for a “smoking gun”.
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Can look at it all. - Simple contract dispute.
Can Reduce Set: Dates, File Types,
Custodians.
Search Terms – Key Words. Go Fish
◦ False positives
◦ Misspellings
◦ Miss lots of documents.
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Predictive Coding: Build a spam filter with
seeding of documents or random sampling.
Concepts: Group similar documents
together based on noun patterns. But
search for a concept.
Clusters: Visually group similar documents
together. Automatically happens.
Timelines: Look
Email Threads: Grouping conversations
together.
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2006 E-discovery amendments to Federal Rules
Rule 16 (initial status hearing with the court) and Rule 26
(initial conference between parties)
Rule 26 (f)(3) (“Meet and Confer”)
Why are these important?
◦ Lawyer must understand client’s electronic data.
◦ E-discovery cannot be ignored .
◦ New, undefined term…ESI.

Understand client’s ESI (Electronically Stored
Information) – Get organized!
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Preservation
◦ Document retention policies.
◦ Duty to preserve/suspend policy.
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Have a litigation hold plan with client
◦ Effectively handling the litigation hold letter.
◦ Zubulake V/Pension guidelines – not enough
to send letter.
◦ Check local rules and case law.
How far must you go to preserve?
◦ Forensic imaging?
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Effect of evidence preservation letter to
opposing counsel? Consider strategies
Be prepared for 26(f) conference
◦ Be more knowledgeable than your adversary.
◦ Consider addressing preservation scope and
cost issues.
◦ Work together to avoid unnecessary discovery
disputes.
◦ Do not misrepresent system’s capabilities or
lack thereof.
◦ Identify inaccessible information?
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Understand opponent’s technology
◦ Records custodian deposition
 Know the right questions to ask
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Discovery
◦ Know what to ask for and in what format.
◦ Know the difference between a PDF and a PST.
◦ Keep in mind you may only get one bite at apple.
◦ Can we get their computer?
◦ Often in client’s best interest for counsel to
cooperate.
Manage expenses (not enough or too much?)
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Proportionality: A major governing principal.
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“Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another's use as evidence in pending or
reasonably foreseeable litigation.”
Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)
◦ Outside counsel withholds tens of thousands of emails; deponent’s
computer not searched prior to deposition, etc.
◦ Court sanctions Qualcomm $8,568,633 for discovery abuse.
◦ Orders certain in-house and former outside counsel to participate in
"Case Review and Enforcement of Discovery Obligations" Program.
◦ Refers investigation of possible ethical violations to California State Bar.
Qualcomm order imposing sanctions on 6 outside counsel later vacated.
Issue remanded to magistrate to allow attorneys to fully defend their
conduct
Attorneys fees, Adverse Inferences, Evidence Exclusion, Striking of
Pleadings, Default Judgment, Dismissal, Ethical Sanctions, Criminal
Penalties (COURT’S INHERENT POWERS)

Pension Committee of the Univ. of Montreal Pension Plan, et al. v. Banc of America
Securities, LLC, et al., 2010 WL 184312 (SDNY 2010)
◦
"After a discovery duty is well established, the failure to adhere to contemporary
standards can be considered gross negligence. Thus, after the final relevant Zubulake
opinion in July, 2004, the following failures support a finding of gross negligence,
when the duty to preserve has attached:
1) to issue a written litigation hold;
2) to identify all of the key players and to ensure that their electronic and paper
records are preserved;
3) to cease the deletion of email or to preserve the records of former employees that
are in a party's possession, custody, or control;
4) to preserve backup tapes when they are the sole source of relevant information or
when they relate to key players, if the relevant information maintained by those
players is not obtainable from readily accessible sources."
◦ "While litigants are not required to execute document productions with absolute
precision, at a minimum they must act diligently and search thoroughly at the time
they reasonably anticipate litigation."
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Contractually identify areas where lawyers typically
have to negotiate into the lease.
Precedent: Choice of law provisions, Choice of
Venue, Jury Waivers, Arbitration Clauses.
Jay Brudz & Jonathan Redgrave, Using Contract
Terms To Get Ahead of Prospective E-Discovery
Costs and Burdens in Commercial Litigation, XVIII
RICH. J.L. & TECH. 13,
http://jolt.richmond.edu/v18i4/article13.pdf
Absence of preservation duty unless a notice
or request to preserve is served on the party.
1.
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$30K per GB Sedona Estimate.
Microsoft estimate: For each page of trial
exhibit, they produce 1,000 pages, manually
review 4,500 pages, collect and process 90,000
pages, and preserve 340,000 pages.
Limitations on the amount of discovery
allowed, including the amount of
preservation.
2.
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Back up media
Forensic examination of deleted data
Limitations of custodians to 5 absent showing of
good cause.
Mechanics governing preservation &
production decisions into a predictable
framework
3.
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Call for neutral party to Mediate claims or Special
Master to tap into e-discovery expertise.
Limit use of key words or agree to predictive
coding.
Procedures allocating the costs for ordinary
and extraordinary discovery.
4.
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Provide mechanics for fee shifting.
Create mutual incentives to control costs.
Agreed restrictions on sanctions for
purported discovery failures.
5.
◦
Eliminate the risks of failure or mistake, no
matter how innocent, turning into negligence
resulting in monetary damages, adverse
instructions to jury or dismissal of a claim.
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Untested idea
Public Policy
◦ Discovery is not constitutionally mandated.
◦ Not barring claims
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Unconscionability
◦ So one sided
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Tort Claims
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Understand advantages of getting electronic
information
Recognize sources of ESI
Failure to understand client’s electronic data or
records system is no longer an option
Create a litigation hold strategy in advance
Consider creating record retention policies for
clients
In order to benefit from e-discovery, you must
know what to ask for
Education will benefit your clients as well as
you
•
•
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Consider lease provisions related to ediscovery. Parties can contract
to mitigate risk. This is a very progressive idea which lawyers are
starting to talk about.
Have someone who understands technology involved in the
process. Lawyers are generally not proficient in this area.
Do not treat your technologists as an order taker. When discussing
how to tackle a case efficiently, allow and encourage the discussion
of ideas guided by a principle of what seems reasonable, which is
usually the standard we are held to.
•
Create legal hold and preservation policies and follow them.
•
Prepare ediscovery policies in advance which include processes for
data remediation.
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Questions?
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